The “Unwilling or Unable” Standard for Self-Defense

by Kevin Jon Heller

One of the most remarkable aspects of how conservative U.S. scholars approach international law is their absolute certainty that the American position on extraordinarily difficult issues is always correct. Consider, for example, Jack Goldsmith’s articulation today of when the UN Charter permits the U.S. to use force in self-defense against non-state actors:

If the president is authorized to use force against a terrorist group by Congress, and if the U.N. Charter’s sovereignty concerns are overcome because the nation in question is unwilling or unable to address the group’s threat to the United States, and as long as the United States complies with jus in bello restrictions on targeting (distinction, proportionality, etc.), there is no further legal requirement.

Reading this, one would think it is patently obvious that international law accepts the “unwilling or unable” standard. Goldsmith does not bother to defend that position. (Ashley Deeks at least cites a couple of law reviews in defense of it, albeit one from 1958, in addition to — unsurprisingly — statements by American officials.)

Is the “unwilling or unable” standard the correct one? Perhaps — but that position needs to be the end of the analysis, not the beginning. After all, the ICJ does not accept the standard: the Court has consistently held that Article 51 of the UN Charter limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed attacks are in some way imputable to the state whose territorial sovereignty is being violated. That was the ICJ’s position in Nicaragua, and the Court reaffirmed that position in both the Palestinian Wall advisory opinion and DRC vs. Congo. It is certainly possible to argue that the customary rules governing the use of force in self-defense have evolved to adopt the “unwilling or unable” standard. But that is a highly contentious and extraordinarily difficult question. As Tom Ruys has concluded in his magisterial study of Article 51 — a study that actually examines state practice and opinio juris concerning the use of armed force against non-state actors:

In the end, we must admit that this is an area which is characterized by significant legal uncertainty. De lege lata, the only thing that can be said about proportionate trans-border measures of self-defence against attacks by non-State actors in cases falling below the Nicaragua threshold is that they are ‘not unambiguously illegal’. De lege ferenda, webelieve that customary law is evolving towards a different application of Article 51 UN Charter in relation to defensive action against a State – viz. coercive action that directly targets the State’s military or infrastructure – and defensive action within a State – viz. recourse to force against a non-State group present within the territory of another State.

Goldsmith exhibits no such tentativeness, perhaps because it is simply unthinkable to him that international law might limit the United States’ ability to use force in self-defense. Indeed, for too many American international-law scholars, particularly conservative ones, it is meaningless to distinguish between the lex lata and the lex ferenda — international law is simply whatever the U.S. says it is.

7 Responses

You cite Nicaragua, DRC v. Uganda and the Wall – but I don’t see their relevance. Under the “unwilling or unable” doctrine we do attribute the attacks to a state. We claim that states have a due diligence obligation, that is derived from the vast corpus of international treaties concerning terrorism, to ensure that terrorists are not carrying out attacks from their territory.

Now you might argue that such customary due diligence obligation does not exist or that even if it does, it does not result in a right of a self defense. But the element of attribution exists, just like in corfu channel – a responsibility is incurred by the “unwilling or unable” state.

9.17.2011
at 4:52 am EST Asaf Lubin

The standard for imputability in those cases would not be satisfied by a state being unwilling or unable to prevent its territory from being used by a non-state actor. Nicaragua, for example, held that the state had to have “effective control” over the non-state actor. Read Ruys.

Response…Go back and re-read the debate concerning The Caroline incident in 1837 — non-state actor armed attacks against Canada could justify appropriate measures of self-defense without U.S. consent and when the U.S. was not at war with Canada and when there was no attribution or imputation to the U.S. — the debate was about the appropriate test for actual self-defense method uses.
see http://ssrn.com/abstract=1520717
Yes, there is no unwilling or unable test that would allow preemptive self-defense before a process of armed attacks begin, but there is also no unwilling or unable limitation of the right to engage non-state actors once the attack(s) begin.
After 9/11, the U.N. S.C. and NATO recognized the U.S. right to respond in self-defense — to al Qaeda
see http://ssrn.com/abstract=1798582
As we all know, nothing in the language of Art. 51 limits armed attack to attacks merely by a state as opposed to a nation, belligerent, insurgent, or other non-state actor.

9.19.2011
at 1:54 pm EST Jordan

Response…
p.s. It is obvious that John Brennan accepts the anticipatory self-defense claims of some when he assumes that we can target persons when there is an “‘imminent’ attack,” but Article 51 of the U.N. Charter expressly declares that self-defense, even inherent self-defense, can occur “if an armed attack occurs” . But Brennan comes close to the Bush doctrine when he opines that the U.S. can target those who pose a significant “threat” — “whose removal would cause a significant … disruption of the plans and capabilities of” al Qaeda “and its associated forces” — “a more flexible understanding of ‘imminence” indeed! — and far too far. Persons would be targetd who are NOT DPH and are NOT DPAA (direct participants in armed attacks) if their removal would cause a “significant disruption,” if they are a significant “threat”. International law does not go that far!

9.19.2011
at 2:21 pm EST Jordan

I also ask – as I have before – the converse (or is it obverse) which is to what extent the inherent right of self-defense of the host state is triggered. The more that Brennan goes to anticipatory self-defense the more likely it seems to me that the inherent right of self-defense of the host state is going to be triggered. I do like Asaf’s due diligence argument, but one man’s terrorist may be the other man’s freedom fighter and so to have that due diligence thing operate requires that both the attacking and host state recognize the terrorist nature of the non-state actor in the host state it would seem to me. Moreover, if we continue down this path, the “S” word sovereign host state may be playing a five or seven level “game” with unseen support by other states that are happy that the non-state actor is in the host state because it irks the state that wishes to attack. These third party states are in a sense using the host state and the non-state actor as pawns in a game of hegemony where direct conflict with the state wishing to attack would be untenable in the current system. The presence of the non-state actor in the host state may be precisely there to engender time and treasure expenditure by the attacking state to deplete its resources and economy. This game is further encouraged by the host state playing a game that makes it less clear than ever that they are either unwilling or unable – weakening the nature of that trigger to the attacking state’s action, if that trigger actually exists.
Best,
Ben

9.19.2011
at 6:20 pm EST Benjamin G. Davis

To say that Caroline supports the “unwilling and unable” standard is a bit of a stretch. But regardless, fortunately we no longer live in a world in which international law is dictated by powerful states like the US and UK.

Response…
No, the point is that there is no “unwilling or unable” limitation of the right to engage non-state actors who are engaged in a process of armed attacks, for example, on your military abroad (for example, on your miltary in Afghanistan). The Caroline incident is what many refer to when addressing the propriety of self-defense — whether or not the UK and the US are still important participants in the international legal process. Some even refer to it in an attempt to find historical precedent for anticipatory self-defense when there is merely a threat of imminent attack, but the debate was whether a mehtod or means of self-defense was permissible given the fact that the armed attacks had already occured and were continuing. One of the British officers (I believe it was the officer in charge), later stated that no one would have objected if the UK had targetd an artillery emplacement on the NY shore that had been firing rounds into Canada. I think there is one law review article’s reference to that statement (check Westlaw).

9.20.2011
at 1:23 pm EST Jordan

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